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My Three Trials
Three Experiences as an Expert Witness
in the Electronic Games Industry

(PART TWO)
NINTENDO v. GALOOB


by Bill "The Game Doctor" Kunkel


Trial 2 (1991)

Talk about almost blowing a great career before it even got off the ground... again.

I had clearly come perilously close to being driven from the business by the suits at Atari Unlimited as a result of my participation in the legendary KC Munchkin/Pac-Man Trial (see "My First Trial") in the early 80s. But for whatever reason, Atari, then under the leadership of Michael Moone, was very classy about the whole thing. Moone was a good-looking, albeit somewhat plastic character - at one point I half-suspected that Atari's advanced systems department had slapped him together down in the basement one stormy night. He's also a guy who nobody seems to remember. Oh, you can locate him on Google and confirm his existence, but the next time I hear someone refer to "The Moone Years" at Atari, it'll be the first.

In any case, I did survive, only to do the same damned thing all over again almost a decade later. But first a caveat of sorts: I do want to make clear that the side I took in each of my three expert witness litigations represented the party in whose case I believed. And given the power of the companies whose corporate shoes I was breaking, my sense of rectitude could have proven cold comfort had Atari, Nintendo or Capcom been vindictive - or ballsy - enough to try and bury me. But for whatever reason, the three powerful companies against whom I gave testimony and/or depositions never, so far as I know, ever suggested the possibility of taking revenge on a lone, big-mouthed journalist.

On my second trip through the litigation sausage grinder, therefore, I once again pushed my luck, tempted fate and tugged real hard on Superman's cape by cavalierly volunteering my services to the Lewis Galoob Toy Company at the 1990 Summer CES (SCES) in Chicago.

*********************************************

The Game Genie was Galoob's first entry into the electronic gaming world, but I was familiar with them from all the Toy Fairs I'd attended back in New York City in the 80s. Also, Galoob's arrival in the electronic entertainment field meant that they had to hire some familiar faces, people who had been around the business, and of course I was known to them.

That '90 SCES as being a big peripherals show. Mattel's silly Power Glove and Broderbund's inane U-Force joystick were both laying ostrich-sized eggs with the press, the distributors, and the retailers, but it was this item dubbed the Game Genie that virtually everybody with smarts in the entire industry fixated on as the best of show in the peripherals category.

1990 was late in the life cycle of the Nintendo Entertainment System (NES), and a significant segment of its users had become frighteningly skilled at playing NES games. At least their growing skill frightened the game producers. This was, after all, the age of the Platform Game. Publishers would acquire a license or create an original intellectual property and then drop these characters into an endless series of similarly-designed playfields comprising horizontally scrolling levels (ie, platforms), power-ups, enemies and ropes/chutes/ladders, via which the player-character could move from level to level. Dave Crane's Pitfall is acknowledged as the first scrolling platform videogame, but games such as Space Panic (Universal), Miner 2049er (Bill Hogue) and Jumpman (Epyx) had explored the possibilities of platform-style play within a non-scrolling playfield years earlier.

When the NES became a phenomenon in the late 80s, it was unlike the previous generation of videogames in one very significant area: it eschewed the joystick. No longer was direction the primary component of the games. Direction was assigned to the left thumb and basically limited on-screen movement to up, down, left and right. The right hand, meanwhile, was introduced to the new primary gaming paradigm - button mashing! Suddenly the timing with which a player allowed their character to leap across a pit was much more important than steering that character to a precise jump point.

Shigeru Miyamoto is universally regarded as the game design visionary who endowed platform games with the interface nuances that made the genre so popular for so long. And we can see that the interface provided by the NES was ideal for those purposes. In that sense - although it did not scroll, but rather redrew a new landscape when the character reached the far right of the screen - Smurf Adventure on the previous generation's Colecovision may have been among the most influential games ever created.

In any case, platform games were everywhere. Sometimes the perspective was slightly isometric but mostly it was plain 2D. And advancements came like a cool breeze in the desert heat - infrequently and with little long term impact. The brute fact could be seen by anyone with eyes: as the 90s dawned, platform games had become a creative plague and a demographic nightmare within the industry.

With these 2-D platform games dominating the market to an almost unimaginable degree, players were quick to discover that tricks and techniques mastered in one platform game were often transferable to all platform games. These videogame gunslingers would boast how they'd "conquered" this or that platform game in a couple of hours or less. The developers, in turn, got all macho about their not being able to turn out difficult enough games. So of course they went overboard and began producing videogame contests that even an Arcade Houdini couldn't stand against.

And if the designers couldn't find creative ways to make the games harder, that was no problem, they'd just cheat. You see, at the end of each level of a platform game the player-character had to defeat a "Boss" (the biggest, baddest monster on that level) in order to advance to the next platform. And how hard is it to simply jigger the Boss's hit point parameters to make it virtually unkillable? Takes a second, maybe two to change the number of shots required to kill the Boss from "10" to "100".

As a result, most NES gamers had a closet full of cartridges that they had never even played halfway through because they couldn't beat the sixth level boss or maneuver through the Acid Bogs of Bowtheria on a wooden raft. Game magazines were filling up with tips and special Easter Egg codes while entire lines of books known as Official Strategy Guides were beginning to generate dollar signs on the spreadsheets of publishers like Ben Dominitz, whose Prima Publishing raked in mega-bucks through the mid-90s by telling players how to actually complete their games (in minute detail and with an abundance of accompanying playfields and diagrams).

Not only were videogames becoming elitist insofar as only perhaps the top 5% of players were sufficiently skilled to actually experience more than a taste of the program, but the whole idea of gaming as an interactive family experience was being lost. Whereas the early Atari 2600 games came with dozens of game variants and a rainbow of skill levels, most NES games from the late 80s and early 90s traditionally came in two flavors: Hard As Hell and Fahgettaboutit. The 2600 had even offered individual skill settings for each player on its console. Nintendo and its vassals, on the other hand, had hard-wired their games to the skill sets of 14-year old males.

So when fathers and sons or brothers and sisters sat down to play the latest platform twitch game during the last years of the NES, it wasn't even vaguely competitive. Between tapping the tips in the game magazines and scarfing the skinny from his buddies who had already "conquered" the latest hot game, the adolescent or teen male gamer always had the winning edge.

The Game Genie, however, was distinct from the various mind-controllers and glove controllers and virtual steering wheels which, at best, worked well on only one or two game genres. This was a piece of hardware with an infinite upside. By using the Genie as a physical interface between the NES and its software, players could change up to three features (three wishes - it's a genie, remember) in any single game. For example, players could grant themselves any number of lives, speed up their on-screen surrogate and allow their character to literally fly above any and all obstacles. These modifications were generated by having the player enter a line of code for each of their three selections. These codes appeared in the product's Programming Manual and in an additional Code Book which came with the Game Genie. Subsequently, Galoob intended to (and, in fact, did) produce more of these Code Books as new games were released.

Wonk Alert: For those who care, the Game Genie's secret was its ability to block the value for a single byte of data sent by the software to the NES system's CPU and substitute the new value selected by the gamer. A key element of Galoob's case lay in the fact that the Genie did not actually change any of the data in the game cartridge; the alterations lasted only until the end of that play session at which point the game defaulted to its original program.

I immediately loved the Game Genie.

I thought about how I would be able to look through an entire game before I reviewed it without badgering the PR people for cheat codes. And I thought about all those half-played games sitting in closets the world over that could be given new life. You see, I've always had this weird belief that if you buy an electronic game, you have the right to see everything that's in that game. If you must cheat to do so, what law are you breaking? The mentality of game developers, however, was not unlike a book publisher expecting consumers to purchase a mystery novel that required the reader to take a test before granting them an access code to unlock the final chapter.

I remember sitting in one of Galoob's meeting rooms at that CES, predicting that they could sell millions of these things through the coming Christmas season. And that's when the Galoob PR people broke the news: "Well, Nintendo hates it. It looks like they're going to file for a preliminary injunction to keep it out of stores this Christmas." This was not good news for Galoob as Christmas '90 looked like the last shot at a big year for any NES produce. As it was, Sega released its Genesis two years before Nintendo finally felt it could risk cutting the legs out from under its iconic NES by shipping the Super Famicom (SNES) to North America.

"So you may not get this out for Christmas?" I asked, getting rather pissed off in the process.

"Not if Nintendo gets its injunction."

It had been almost a decade since I had risked my career by testifying against Atari. But still, I am the Eternal Asshole. Not only do I agree to testify but I always wind up testifying against the most powerful force in the industry at the time. No doubt if I were to be hired today as an expert witness, I would wind up siding against EA, Sony or perhaps both. In fact, when EA purchased exclusive rights to the NFL recently, I did feel that old twinge again. But that's a story for another time…

In any case, because I am the Eternal Asshole, I never learn. So I opened my yap and declared to the Galoob PR people assembled: "That's outrageous! I've worked as an expert witness before, so if you need anyone to testify against Nintendo in this case, call me."

I accepted their props and back pats with the assurance of someone who figures nobody's going to remember any of this by the time they get home from CES.

Sure they would. I barely had unpacked the various game-related shirts, yo-yos, key chains and other CES gewgaws before the phone was ringing. Rather than pass me directly into the hands of lawyers, however, the folks at Galoob were thoughtful enough to give me the coward's way out. "We really appreciated you volunteering to testify," they said. "But we would certainly understand if you felt unable to do this."

Of course, I took the blue pill and within 24 hours representatives from the law firm of Howard, Rice, Nemerovski, Canady, Robertson & Falk (henceforth known simply as Howard, Rice) were in touch on behalf of Galoob.

*********************************************

This case proved quite different from my other two adventures in Expert Witnessville in that Nintendo had already essentially lost the case before I ever entered a courtroom. In fact, I don't think I ever actually saw a courtroom in this case. I made many trips to Embarcadero Plaza, where the Howard, Rice offices were located and the main event was my deposition with Patricia Thayer of Howard Rice by my side and John Missing, on behalf of Brobeck, Phleger & Harrison, representing NoA, across the table.

Howard, Rice, you see, had been able to reverse the preliminary injunction which Nintendo of America had used to keep the Game Genie off the shelves the previous Christmas and ultimately won a dismissal of Nintendo's copyright issues altogether. This judgment was later affirmed on appeal.

My role in this case, therefore, was as one of the experts selected by Galoob to help determine the amount of damages Nintendo had cost them through its injunction. Of course, between depositions and such, we overstepped the purely financial issues on more than one occasion.

What follows are excerpts from that deposition, taken November 4, 1991:

Missing: …I would like to talk about the entire five- or six-year history of KKW; and if it has changed over time and you want to break it down, you can do that.

A: No. As I say, there are periods when we've emphasized journalism more than the other ends of the business, but the consulting has been pretty steady.

Q: So consulting has consisted of analysis of games, redesign of games, and preparation of instructions for playing of games?

A: Correct.

Q: Anything else?

A: No.

Q: When you say analysis of a beta copy or analysis of a game, what do you mean by that?

A: Again, it's very similar to the process you would undergo in reviewing a game; but rather than orienting it toward the consumer, you're orienting it toward the publisher. So you're telling the publisher there are a certain number of similar games out there, for example, and how their game fits in within that category, how close they are to state of the art in terms of graphics, how well the sound effects work within the context of the game, that sort of material.

Q: Do you provide opinions or analysis with respect to the likely success of a game?

A: Absolutely.

Q: That's part of the analysis stage?

A: It's called market perspective.

Q: So you provide market perspective in connection with your consulting services.

A: That's correct.

Q: What does market perspective consist of?

A: [It] consists of placing this product into the context, in the existing context of the game market.

Q: What aspects of the game do you look at in doing that?

A: Sound, graphics, animation, play value… how skillfully the interface works.

Q: Do you look at price or pricing? Is that something you consider in writing a market perspective?

A: No, generally not. Occasionally we will be specifically asked if this is a budget product or not, and we will - in that case, we will give our opinion on the project and how much it should be priced at.

Q: I gather from what you've been saying that the consulting services are certainly provided with respect to software?

A: Yes.

Q: Have you provided consulting services with respect to peripherals?

A: We've done some work with joystick manufacturers, but it's been very limited.

Q: And which joystick manufacturers are those?

[At this point we nail down the fact that KKW did some consulting for Wico and another company - it was Suncom, I believe - that I couldn't recall at the time, but that joystick consulting was not exactly our major line of work. Of course, Mr. Missing must have thought this wonderful news since it would seem to indicate that KKW had virtually no experience with regard to peripherals. It was quickly apparent, however, that joysticks and the Game Genie were totally apples and oranges - it was only the fact that both were marketed under the broad term "peripherals" that gave them anything in common. Now we moved on to the Numbers Game portion of the deposition… -Bill]

Q: With respect to how many games or titles of software has KKW rendered consulting services?

A: I have no idea. Many.

Q: More than 30?

A: Many more than.

Q: Less than 500?

A: We can say fewer than 500. [I loved correcting his grammar. -Bill]

Q: I'm trying to get the parameters you're comfortable with.

A: You got them.

Q: Can you narrow it any more than that, or would it require speculation?

A: It would require total speculation.

Q: So KKW has provided consulting services with respect to anywhere from 30 to 500 games over its history?

A: Yes.

Q: Would the games come from game manufacturers or from publishers or any one segment of the industry?

A: Well the publishers and the manufacturers - I mean, I don't understand the distinction.

Q: Who hires you to perform these consulting services with respect to a given game?

A: It could be the developer. It could be the publisher. It depends on who feels that the game needs help.

Q: You can be hired by anybody; obviously, anybody who has a game he wants some help with… is a likely client? [Is he calling me a whore? -Bill]

A: That's correct. [Guess he was. -Bill]

Q: Are you ever hired directly by companies, such as those companies for whose systems you devised games, such as Commodore or Atari or IBM or NEC?

A: Yes.

Q: So those companies have, themselves, hired you as consultants with respect to certain of their game titles? [He does a very good job of casting this mundane information in a sinister light, don't you think? -Bill]

A: Yes.

Q: Is there one company that has hired you more often than others for your consulting services?

A: Well, it's generally more often the publishers who are coming to us, and they're often coming to us with multiple SKUs on the same game. So we may be looking at an IBM version of a game at the same time we're looking at a Nintendo version of a game, and at the same time doing two sets of analyses, as if they were two separate projects.

Q: Has KKW designed any game to play on 16-bit systems? [By "KKW", Mr. Missing actually meant Subway Software, the design branch of KKW. -Bill]

A: Not yet. [I must have had a major brain fart at this point since Subway Software had already designed quite a few 16-bit games by that point. -Bill]

Q: Has KKW perform [sic] consulting services for games intended for play on 16-bit systems?

A: Yes.

Q: How many?

A: Probably a couple dozen.

Q: And the rest would have been designed for use on 8-bit systems?

A: That's correct, or computers.

Q: So the vast preponderance of the titles on which KKW has provided consulting services have been for use on systems other than 16-bit systems?

A: That's correct.

Q: Has KKW ever performed any consulting services for Lewis Galoob Toys, Inc.? [He's going for the big one here, boys! -Bill]

Ms. Thayer [My Lawyer]: You mean other than in connection with this litigation?

Mr. Missing: Yes, other than providing expert testimony.

Kunkel: No. [Haw-haw. -Bill]

Q: Aside from any expert testimony that KKW or you may be providing for Lewis Galoob Toys, have you or KKW had any professional relationship with Lewis Galoob Toys? [I think he's calling me a hooker again… -Bill]

A: No.

Q: Would that be true of Mr. Katz as well?

A: Absolutely.

Q: And Miss Worley?

A: Yes.

[The deposition went on for hours, but finally climaxed with the following exchanger:]

Q: Let's look at the final opinion, line 25 and 26 of Exhibit 6. [You say] Game Genie will achieve far less market penetration due to it's [sic] exclusion from the market in 1990 and 1991. What do you mean by "market penetration"? [He said "penetration". -Bill]

A: Sales, sales to owners of NES systems. I mean, clearly, if it had gone on sale last Christmas, when the audience was ready to buy it, when the NES was still perceived as a viable, live system, then its market penetration would by now be extremely solid.

Instead, the system is being born under much shakier conditions. It's being sent out into a world where the NES is perceived as a dying system, and people are going to be much less likely to spend money on a peripheral for a dying system than they are for one they perceive as a healthy system.

And whether, in fact… your hypothesis [mentioned previously] is correct or not almost doesn't matter, because the perception will become the reality, and the perception is that 8-bit technology is on the way out. If 16-bit technology is here, then 8-bit technology is old technology, and Americans don't like old technology. You could still sell a lot of systems, but you're selling them so people can buy software that no one is making any money on.

Q: Are you aware of any return or defect data for the Game Genie?

A: No.

Q: Are you familiar with the magazine Nintendo Power?

A: Yes, I am.

Q: Do you see that magazine as a competitor of any of the magazines you've worked for?

A: In a sense, it is, yes, though it's [sic] sort of half and half. It's also a promotional device. It's sort of a half newsletter magazine, company magazine, and half editorial publication. It's kind of perceived by the public as an educational publication, but it is in fact a promotional device.

Q: Have you ever published anything in Nintendo Power?

A: No.

Ms. Thayer: Have you ever attempted to?

A: No.

Q: To sum up, if I can, because I want to make sure I understand your opinion about the penetration the Game Genie will achieve in fact in 1991 and in the future, you believe it's less now than it would have been, due to the advent of the 16-bit technology and, in part, what you've described at various times as a kind of natural life cycle of technology and games.

A: Yes. Electronic entertainment technology does not live forever. It has a clearly discernable, empirically evident life cycle, just because our society moves at such a rapid pace in terms of technology. There are already 32-bit things in the works. The only thing holding them up is the fear that if a 32-bit system enters the market at this time, every person in America will run screaming into the night.

Q: You said individual products also have a life cycle or life span, and I think you said in the Game Genie it would have been two or three years if it would have been released in 1990; is that correct?

A: Yes, again, linking it to the NES's life cycle.

Q: Do you believe that the Game Genie's life cycle, the two-to-three year life cycle, will be less in light of the injunction, now that it's being released for the first time in 1991 - I'm sorry, the answer to that was yes. [This is the crux of the entire case and he not only answers his own question, but gives the answer that hurts his own case. I liked this guy. -Bill]

Does the life cycle, in your view, of the Game Genie - did it begin at the time of its announcement as opposed to the time of its actual introduction?

A: That's a very interesting question. I think, on the part of the public, the perception is this product was created last year. They read about it last year in all the magazines. They heard about it from all their friends. They talked about it. A year of its life cycle is gone. It's being born as if it had remained in the womb an extra 12 months.

Q: What's the basis for your belief that the public in general was aware of [Game Genie's] existence last year?

A: Just the incredible amount of reaction and interest that all the electronic game magazines drew, that all the companies related that produced Nintendo-related product received.

I think it's quite obvious that anyone who cares at all about what's happening in electronic gaming knew there was a product called a Game Genie and that… it was going to come out, and it didn't. They may not know the details of the litigation, but I believe the majority of game players were aware of its existence.

Q: Is that true of casual players?

A: I believe so.

Q: And what's your basis for your belief that casual players were aware of it?

A: Word of mouth is very sterong in this business. It's stronger than in any other industry with which I am familiar.

So we used to try to calibrate our pass-along readership on Electronic Games magazine; and according to the surveys that we got from our readers, the number was so high we never even related it to anyone, because no one would have believed it. The pass-along readership was like ten; ten people were reading it for everyone who was buying it.

It's my belief that still holds true for video game magazines. So if you have a universe of maybe half a million people buying video game magazines and you multiply that by a factor of 10 on pass-along readership, or a kid comes into school and tells his friend, "Did you hear about the Game Genie?" and he tells two friends and they tell two friends, like the [famous 90s shampoo] commercial, every game player, even the casual ones, are hearing about this thing called the Game Genie..

[End of transcript.]

The words continued briefly but, in essence, that was the end of my deposition. And just for the record, Galoob obtained a $15 million judgment after prevailing on the liability stuff, as the damages judgment following a second trial to recover their injunction security. This judgment was later affirmed by the Ninth Circuit.

The Game Genie came out and did damn well for itself, even spawning a competitor, the Game Shark. This type of system soon became a staple in the video game world, moving on to higher powered systems and signaling a major loss to the then-mighty Nintendo.

I'm two for two, but because I am the Eternal Asshole, I still have one more battle to fight - and this one was the worst of them all.

[There's quite a bit more fairly interesting testimony from the Galoob-Nintendo trial, but a somewhat lengthier and slightly re-written version of this article - along with a revamped "My First Trial" and, eventually, "My Third Trial" - will be appearing some time in the near future in a collection of essays based on my experiences in the game world. Entitled "Confessions of The Game Doctor" it will be published by Rolenta Press - stay tuned for details! -Bill]


STAY TUNED!

In the third installment of this memoir,
Kunkel takes on Capcom, the makers of the highly popular Street Fighter series in an copyright infringement lawsuit on behalf of Data East and the game Fighter's Destiny!



© 2005 by Bill Kunkel





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